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Acquiescing to China’s Assertiveness in the South China Sea: U.S. and Australian Policies of Not Tak

C3S Paper No. 0081/ 2015


Introduction

Since 1979 the United States has conducted a Freedom of Navigation program designed to challenge coastal states that adopt practices at variance with customary international law with respect to their maritime zones. Specifically, the US challenges the right of coastal states to regulate military activity in their Exclusive Economic Zones (EEZs) by deliberately sending military ships into these areas. The US arguesthat these military activities are not proscribed by the United Nations Conventions on the Law or the Sea(UNCLOS).

According to a policy brief issued by the U.S. Department of State:

U.S. policy since 1983 provides that the United States will exercise and assert its navigation and over flight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and over flight and other related high seas uses… The FON Program operates on a triple track, involving not only diplomatic representations and operational assertions by U.S. military units, but also bilateral and multilateral consultations with other governments in an effort to promote maritime stability and consistency with international law, stressing the need for and obligation of all States to adhere to the customary international law rules and practices reflected in the LOS Convention.[1]

In 1992 and again in 1995 the Association of South East Asian Nations (ASEAN) issued its first two declarations on the South China Sea. The first was in response to growing tensions between China and Vietnam (not yet a member of ASEAN) over oil exploration in the South China Sea. The second ASEAN statement was issued in response to China’s occupation of Mischief Reef in waters claimed by the Philippines. This paper traces United States policy on the South China Sea from the early 1990s to the present.

In 1992 the U.S. was in the process of vacating its military bases in the Philippines after its leases ran out. The prime concern of the George H. W. Bush Administration (1989-1993) was to ensure safety of the sea-lanes of communication (SLOCs) for commercial and military traffic. The U.S. counseled all parties to refrain from using force. The Administrations of President Bill Clinton (1993-2001) and President George W. Bush Administration (2001-09) followed the same general policy line.

United States policy on the South China Sea underwent a sea change under the Administration of President Barrack Obama (January 2009-present).In July 2010 Secretary of State Hillary Clinton declared at a meeting of the ASEAN Regional Forum (ARF) that the U.S. took no side on the issue of territorial and sovereignty claims in the South China Sea. But the United States had a national interest in the South China Sea including freedom of navigation, over flight and unimpeded lawful commerce.

Secretary Clinton and other senior Administration officials, such as the Secretary of Defense, argued that all parties should refrain from the threat or use of force, settle disputes on the basis of international law including the United Nations Convention on the Law of the Sea. U.S. official argued that claims to waters in the South China Sea should be made from land features. This has remained U.S. declaratory policy up to the present.

Within this framework, U.S. policy has also responded to developments in the South China Sea by raising these issues at ASEAN-centred multilateral forums such as the ARF, ASEAN Defence Ministers’ Meeting Plus (ADMM Plus) and the East Asia Summit. The U.S. strongly supports ASEAN and its efforts to get China to fully implement the 2002 Declaration on Conduct of Parties in the South China Sea (DOC) and to move quickly to adopt a Code of Conduct in the South China Sea.

The paper concludes with a brief look at Australia’s South China Sea policy.

Chinese Actions Threatening U.S. Commercial Activities

In 2007-09 China applied behind-the-scenes diplomatic pressure on a number of American oil companies to stop their commercial activities in Vietnam or face the potential consequences in their business dealings with China. This form of Chinese intimidation did not represent a direct threat to the safety of navigation. However it was an implied threat to the freedom of navigation of US commercial survey and exploration vessels operating in contested waters. This section will review briefly the response by the Obama Administration before turning to actual Chinese interference in the safety of navigation of commercial vessels operating in the declared EEZs of the Philippines and Vietnam that lie within waters claimed in China’s u-shaped map.

China also put foreign oil companies, including American companies, under pressure to cease their operations in Vietnam.

In July 2009, the Obama Administration made clear its policies towards threats to US commercial interests in the South China Sea. Deputy Assistant Secretary of State Scot Marciel gave testimony to the Subcommittee on East Asia and Pacific Affairs of the Senate Committee on Foreign Relations. He asserted that the United States has “a vital interest in maintaining stability, freedom of navigation, and the right to lawful commercial activity in East Asia’s waterways” (italics added). And more pointedly, after reviewing recent cases of Chinese intimidation against American oil and gas companies working with Vietnamese partners, Marciel stated, “We object to any effort to intimidate U.S. companies”.[2]

Chinese Actions Against Freedom of Navigation and Over Flight

Perhaps the most notable recent incident related to foreign military activities in a state’s EEZ took place in April 2001 when the Chinese pilot of a J-811 fighter aircraft collided with a US Navy EP-3 signals intelligence aircraft in international airspace above China’s EEZ off Hainan island. The Chinese plane crashed killing its pilot and the EP-3 was forced to make an emergency landing on Hainan. This incident occurred because the Chinese pilot maneuvered his plane in a dangerous manner in disregard for the safety of the EP-3.

According to Mark Valencia, between 2002 and 2009 China recorded at least 200 incidents involving US vessels entering its EEZ to collect intelligence without permission. In the vast majority of cases China avoided direct confrontations.[3] But in the four cases below China reacted in an assertive if not aggressive manner, endangering the safety of navigation (and thus freedom of navigation) of the US ships involved.

Case 1. Since 2002, Chinese ships have repeatedly harassed the USNS Bowditch, an oceanographic survey ship, as it operated in China’s EEZ in the Yellow, East China and South China Seas.[4]

Case 2. On March 4, 2009, the USNS Victorious, an ocean surveillance vessel, was harassed in the Yellow Sea not only by a Chinese Bureau of Fisheries vessel but also by a Chinese Navy maritime patrol aircraft. The fishery vessel illuminated the bridge of the USNS Victorious with a high-intensity light and in the evening crossed the bow of the USNS Victorious at close distance without warning. The maritime aircraft made repeated low-altitude passes over the USNS Victorious.

Case 3. In February-March 2009, the United States dispatched the USNS Impeccable to conduct military scientific research related to Chinese submarine activity operating from Sanya Naval Base.[5] The USNS Impeccable was reportedly operating 75 miles south of Hainan when, on March 5, a People’s Liberation Army Navy (PLAN) frigate crossed its bow at a range of approximately 100 yards without first making radio contact. Two hours later a Chinese Y-12 aircraft repeatedly flew over the USNS Impeccable at low altitude. Then the PLAN frigate crossed Impeccable’s bow again, at a range of approximately 400–500 yards.

On March 7, a PLAN intelligence collection ship contacted the Impeccable over bridge-to-bridge radio and informed its captain that his ship’s operations were illegal and the Impeccable should leave the area or “suffer the consequences”.[6]On the following day, five Chinese ships shadowed the Impeccable, including a Bureau of Maritime Fisheries Patrol boat, a State Oceanographic Administration vessel, a Chinese Navy ocean surveillance ship, and two small Chinese-flagged trawlers.

The trawlers closed on the Impeccable, coming within fifteen meters waving Chinese flags, and ordering the Impeccable to leave the area. When one trawler moved closer to the Impeccable it was sprayed with water from its fire hose. The Impeccable then radioed the Chinese vessels and requested safe passage out of the area. The two Chinese trawlers then attempted to obstruct the Impeccable by stopping abruptly in front of it and dropping debris in the water. The Impeccable was forced to execute an emergency full stop in order to avoid a collision. As the Impeccable attempted to depart the crew of one of the Chinese trawlers used a grappling hook to try to snag the Impeccable’s towed sonar array (SURTASS).

The US Defense Department responded to the USNS Impeccable incident by dispatching a guided missile destroyer to accompany the ship on its next voyage.[7] Tensions over the USNS Impeccable incident abated on March 20when China called an end to its military stand off.

Case 4. The standoff between the USNS Impeccable and PLAN vessels was followed by the collision of a PLAN submarine with the sonar array towed by the destroyer USS John S. McCain on June 11, 2009. The USS McCain was one of three U.S. warships participating in combined exercises with six Southeast Asian navies in waters off the Philippines.

Also in July 2009, Deputy Assistant Secretary of DefenseRobert Scher gave testimony to the Subcommittee on East Asia and Pacific Affairs of the Senate Committee on Foreign Relations regarding the Administration’s policy with respect to harassment of U.S. naval vessels (discussed in the section below).Scher outlined a four-point strategy:

In support of our strategic goals, the [Defense] Department has embarked on a multi-pronged strategy that includes; 1) clearly demonstrating, through word and deed, that U.S. forces will remain present and postured as the preeminent military force in the region; 2) deliberate and calibrated assertions of our freedom of navigation rights by U.S. Navy vessels; 3) building stronger security relationships with partners in the region, at both the policy level through strategic dialogues and at the operational level by building partner capacity, especially in the maritime security area, and 4) strengthening the military-diplomatic mechanisms we have with China to improve communications and reduce the risk of miscalculation.[8]

As a result of US diplomatic interchanges with China both of the above concerns were satisfactorily addressed. In August 2010, Assistant Secretary of Defense Robert Scher, acknowledged, “I am not aware of any recent examples of Chinese intimidation of global oil and gas companies operating in the South China Sea.”[9] Also, Scher did not anticipate another USNS Impeccable-type incident.  “Both navies are very responsible entities and I don’t foresee any kind of clashes,” he stated.

However, three years later that was another incident of Chinese harassment of U.S. naval vessels operating on the high seas.On November 26, 2013, the Chinese aircraft carrier Liaoning left its homeport of Qindao, Shandong province for its first deployment to the South China Sea. Two destroyers, the Shenyang and Shijiazhuang, and two missile frigates, Yantai and Weifang, accompanied the Liaoning.  The Chinese navy website reported that the carrier group would carry out “scientific research, tests and military drills.”The Liaoning’s deployment was closely monitored by the USS Cowpens (CG-63), a Ticonderoga-class guided missile cruiser in international waters.

 On December 5, a People’s Liberation Army Navy (PLAN) ship made radio contact with the Cowpens and asked it to leave the area. The USS Cowpensreplied that was in international waters and declined to change course.The Cowpens was then shouldered by a PLAN Amphibious Dock Ship that suddenly crossed its bow at a distance of less than 500 meters and stopped in the water. The USS Cowpens was forced to take evasive action to avoid a collision.The two ships made bridge-to-bridge contact to ensure safety of navigation. There were no further incidents.

In March, April and May of 2014 China conducted a number of interceptions of U.S. surveillance aircraft in international air space over the East China Sea and South China Sea. On August 19 a particularly dangerous incident occurred when a Chinese J-11 challenged a U.S. NavyP-8 Poseidon aircraft approximately 215 km east of Hainan Island in international airspace.[10]

The J-11 flew alongside the Poseidon at a distance of six to nine metres from the Poseidon’s wing tip. It flew over the Poseidon and then flew at a ninety-degree angle passing in front of the plane. This was a maneuver to show the Chinese jet’s missiles to intimidate the U.S. aircraft. It was an extremely dangerous action because the Chinese pilot was unsighted. Finally, the Chinese jet did a barrel roll over the Poseidon coming within 14 metres of the aircraft. The White House described the incidengt a “deeply concerning provocation.”

U.S. Asserts It Has a National Interest in the South China Sea

Shangri-La Dialogue. In early 2010, Jeffrey Bader, Director for Asia on the National Security Council, and Assistant Secretary of State Kurt Campbell convened an interagency group to review U.S. policy towards the South China Sea. Up to then U.S. policy had been limited to not taking sides on territorial claims. The interagency group reviewed intelligence that Chinese naval deployments to the South China Sea had increased markedly since 2000, along with a rise in incidents between China and claimant states and Chinese intimidation of companies seeking contracts with Vietnam to explore for oil and gas. Interagency discussions resulted in a “new, more comprehensive articulation of U.S. policy.”

Assistant Secretary of State Kurt Campbell and his staff drafted a statement of U.S. policy on the South China Sea for delivery by the Secretary of State at the seventeenth meeting of the ASEAN Regional Forum to be held in Hanoi in July 2010. Bader and Campbell contacted other delegations scheduled to attend the ARF meeting and urged them to speak out about international rights in the South China Sea.[11]

The first public articulation of the new U.S. policy was made by Secretary of Defense Robert Gates at the ninth Shangri-La Dialogue held in Singapore from June 4-, 2010.6, Gates called for “open, transparent, and equal access to the global common”, including the maritime commons, “for security, for trade and commerce, and free passage.” He then pointedly directed his remarks to the South China Sea:

In this respect, the South China Sea is an area of growing concern. This sea is not only vital to those directly bordering it, but to all nations with economic and security interests in Asia. Our policy is clear: it is essential that stability, freedom of navigation, and free and unhindered economic development be maintained. We do not take sides on any competing sovereignty claims, but we do oppose the use of force and actions that hinder freedom of navigation. We object to any effort to intimidate US corporations or those of any nation engaged in legitimate economic activity. All parties must work together to resolve differences through peaceful, multilateral efforts consistent with customary international law. The 2002 Declaration of Conduct [sic] was an important step in this direction and we hope that concrete implementation of this agreement will continue.[12]

ASEAN Regional Forum. Prior to the 17th ARF ministerial meeting in July 2010, several ASEAN members encouraged the United States to make a statement on the South China Sea.[13] The US responded affirmatively and privately advised selected members of the ARF of the position that Secretary of State Hillary Clinton would adopt and lobbied them in advance to make supporting statements.[14]

The discussions at the 17th ARF were not public. Secretary Clinton, however, spoke to reporters immediately after the ministerial meeting. She stated at a press conference:

The United States, like every other nation, has a national interest in freedom of navigation, open access to Asia’s maritime commons, and respect for international law in the South China Sea. We share these interests with not only ASEAN members and ASEAN Regional Forum participants but with other maritime nations and the broader international community.

The United States supports a collaborative, diplomatic process by all claimants for resolving the various territorial disputes without coercion. We oppose the use or threat of force by any claimant. While the United States does not take sides on the competing territorial disputes over land features in the South China Sea, we believe claimants should pursue their territorial claim and the company [sic] and rights to maritime space in accordance with the UN convention on the law of the sea. Consistent with customary international law, legitimate claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features.

The U.S. supports the 2002 ASEAN-China declaration on conduct of parties in the South China Sea. We encourage the parties to reach agreement on a full code of conduct. The U.S. is prepared to facilitate initiatives and confidence building measures consistent with the declaration. Because it is in the interest of all claimants and the broader international community for unimpeded commerce to proceed under lawful conditions. Respect for the interests of the international community and responsible efforts to address these unresolved claims and help create the conditions for resolution of the disputes and a lowering of regional tensions (emphasis added}.[15]

Clinton said that resolving disputes related to the South China Sea was “pivotal to regional stability.”

China was aware of US plans to raise the South China Sea issue and approached individual ASEAN countries and made its objection to internationalizing the issue clear.[16] China argued that negotiations on the South China Sea should be settled bilaterally between China and each claimant. Nonetheless, eleven of the ARF’s twenty-seven members joined the United States in raising maritime security/South China Sea issues: Brunei, Malaysia, the Philippines, Vietnam, India, Indonesia, Singapore, Australia, European Union, Japan and South Korea. Cambodia, Laos and Myanmar did not raise the South China Sea issue, while Thailand was most vocal in urging a non-confrontational stance towards China.

The Chinese Foreign Minister Yang Jiechi was visibly taken aback and described Clinton’s remarks as orchestrated,[17]  “virtually an attack on China” and asserted “nobody believes there’s anything that is threatening the region’s peace and stability.”[18] Greg Torode reported that Foreign Minister Yang was shocked and accused his US counterpart of unleashing an anti-China plot.

According to John Pomfret:

Foreign Minister Yang reacted by leaving the meeting for an hour. When he returned, he gave a rambling 30-minute response in which he accused the US of plotting against China on this issue, seemed to poke fun at Vietnam’s socialist credentials and apparently threatened Singapore, according to US and ASEAN officials in the room. “China is a big country and other countries are small countries, and that is just a fact,” he said staring directly at Singapore’s foreign minister, George Yeo, according to several participants at the meeting.[19]

2nd US-ASEAN Leaders Meeting. Prior to the 2nd US–ASEAN Leaders Meeting in New York in September 2010, a copy of the draft joint statement drawn up by the United States, as host, was leaked by the media in Manila. Associated Press (AP) reported that the U.S. draft statement included the wording that the leaders “oppose the use or threat of force by any claimant attempting to enforce disputed claims in the South China Sea”[20] and reaffirmed the importance of freedom of navigation, regional stability, respect for international law and unimpeded commerce in the South China Sea. Some ASEAN members supported the draft, while others had reservations.[21] However, both the US and ASEAN were in agreement on supporting a full implementation of the 2002 Declaration of Conduct of Parties in the South China Sea and encouraging the eventual conclusion of a regional code of conduct for the South Chins Sea.

Three days prior to the 2nd US-ASEAN Leaders Meeting, Chinese foreign ministry spokesperson Jiang Yu stated

We are concerned about any kind of statement that might be issued by the U.S. and ASEAN over the South China Sea. Words or acts that play up tensions in the region and concoct conflicts and provocations in relations between countries in the region are against the common wish of the countries in the region to seek peace and development.[22]

Finally, Jiang concluded, “We firmly oppose any country having nothing to do with the South China Sea issue getting involved in the dispute. This will only complicate rather than help solve the issue.”[23]

The official Joint Statement dropped references to the use or threat of force and did not even mention the South China Sea by name. Paragraph eighteen (of twenty-five paragraphs) declared:

We reaffirmed the importance of regional peace and stability, maritime security, unimpeded commerce, and freedom of navigation, in accordance with relevant universally agreed principles of international law, including the United Nations Convention on the Law of the Sea (UNCLOS) and other international maritime law, and the peaceful settlement of disputes.[24]

An official “read-out” by The White House issued immediately after the summit stated: “The President and the leaders also agreed on the importance of peaceful resolution of disputes, freedom of navigation, regional stability, and respect for international law, including in the South China Sea.”[25]

Why was the Joint Statement watered down? Several ASEAN states took the view that now was not the time to antagonize China. They also argued that it was not in ASEAN’s interest to be seen as leaning towards the United States in a dispute over the South China Sea. One source reported a high-ranking ASEAN diplomat as observing, “It would not have been fair to include the issue in a statement from a meeting in which China was not present. We also did not want to give the impression that we were willing to do whatever the United States said. By deleting “South China Sea,” we saved the face of both China and the United States.”[26]

ASEAN Defence Ministers’ Meeting Plus. The ASEAN Defence Ministers Meeting Plus (ADMM Plus) held its inaugural meeting in Hanoi on October 12, 2010.The ADMM Plus comprised eighteen defence ministers, ten from the ASEAN states and eight dialogue partners: Australia, China, India, Japan, South Korea, New Zealand, Russian Federation and the United States.[27]

ASEAN Defence Ministers reached consensus that issues related to the South China Sea would not be part of the formal agenda and that no reference to the South China Sea would be included in the final joint declaration.[28] ASEAN defence ministers decided that the formal agenda would include five defence-related issues: humanitarian assistance and disaster relief, maritime security, counter-terrorism, peacekeeping operations and military medicine.[29]

The ADMM Plus meeting was structured to identify common interests and areas for practical cooperation in order to avoid becoming, to use the words of Lt. Gen. Nguyen Chi Vinh, “a place for a war of words.”[30] But no restrictions or pre-conditions were put on the eight non-ASEAN ministers. When directly asked about this point, Australia’s Defence Minister Smith replied, “as far as Australia is concerned, and I’m sure it applies generally and broadly, there were no preconditions for this.”[31]

Seven participants, including the United States, Japan, South Korea, Australia, Malaysia, Singapore and Vietnam, raised concerns about territorial disputes in the South China Sea.[32] Secretary Gates began his presentation by arguing, “What is now essential is that these bilateral relationships be supplemented by strong multilateral institutions” to promote regular dialogue and consultation. Gates argued that in order to enhance the region’s common security:

we must establish both shared ‘rules of the road’ and pursue greater transparency – meaning that as we improve our military capabilities, we must discuss these developments together. This provides assurance that our capabilities are not directed against others in the region and that they will be used for common ends.

Gates then enunciated four principles essential to regional peace and stability: free and open commerce, a just international order that emphasizes rights and responsibilities and fidelity to the rule of law, open access by all to the global commons (sea, air space and cyberspace), and resolution of conflict without the use of force.

Secretary Gates then framed US policy towards the South China Sea with these words:

Disagreements over territorial claims and the appropriate use of the maritime domain appear to be a growing challenge to regional stability and prosperity.

On that note, we are encouraged to see claimant nations in the South China Sea making initial steps to discuss the development of a full code of conduct, in line with the 2002 ASEAN Declaration on the Conduct of Parties. We applaud this multilateral approach and we stand ready to help facilitate such initiatives.

The U.S. position on maritime security remains clear: We have a national interest in freedom of navigation; in unimpeded economic development and commerce; and in respect for international law. We also believe that customary international law, as reflected in the UN Convention on Law of the Sea, provides clear guidance on the appropriate use of the maritime domain, and rights of access to it. By adhering to this guidance, we can ensure that all share equal and open access to international waterways.

The United States has always exercised our rights and supported the rights of others to transit through, and operate in, international waters. This will not change, nor will our commitment to engage in activities and exercises together with our allies and partners.[33]

Secretary Gates reiterated Secretary Clinton’s offer to facilitate multilateral discussions on a code of conduct for the South China Sea.

At the conclusion of the ADMM Plus meeting Vietnam as Chairman issued a statement that specifically mentioned the South China Sea. Paragraph 12 stated:

Some delegates touched upon traditional security challenges, such as disputes in the East Sea [sic]. The meeting welcomed efforts by concerned parties to address the issue by peaceful means in conformity with the spirit of the Declaration on the Conduct of Parties in the East Sea [sic] (DOC) of 2002 and recognized principles of international law, including the United Nations Convention on the Law of the Sea (UNCLOS 1982).[34]

U.S. Pivot to Asia.On coming to office in 2009, Obama Administration officials quickly declared, “the United States is back in Asia.” The United States acceded to the ASEAN Treaty of Amity and Cooperation, appointed a permanent ambassador to the ASEAN Secretariat and revived the annual ASEAN-United States leaders meeting. In 2012, the United States announced that with its withdrawal from Iraq and eventual withdrawal from Afghanistan, it will “pivot” to the Asia-Pacific and quarantine defence cuts from the Pacific Command’s Area of Responsibility.

The heightened importance of the Asia-Pacific was underscored in January 2012 with the release of a new national defense strategy, Sustaining U.S. Global Leadership: Priorities for 21st Century Defense. This document stated:

U.S. economic and security interests are inextricably linked to developments in the arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia creating a mix of evolving challenges and opportunities. Accordingly, while the U.S. military will continue to contribute to security globally, we will of necessity rebalance toward the Asia-Pacific region. Our relationships with Asian allies and key partners are critical to the future stability and growth of the region. We will emphasize our existing alliances, which provide a vital foundation for Asia-Pacific security. We will expand our networks of cooperation with emerging partners throughout the Asia-Pacific to ensure collective capability and capacity for securing common interests [emphasis in original].[35]

The United States responded to China’s naval build-up and development of anti-access/area denial capabilities by strengthening its posture on Guam, stepping up weapons and equipment sales to the Philippines, negotiating new arrangements with Australia giving the U.S. greater access to training facilities near Darwin, and basing Combat Littoral Ships in Singapore.[36]

The U.S. has deployed thirty-one of its fifty-three fast attack submarines to the Pacific and stepped up its anti-submarine warfare program. Eighteen of the U.S. subs are home-ported in Pearl Harbor; the others are based in Guam.[37] Additionally, the United States has also deployed three Ohio-class nuclear submarines to the Asia–Pacific Indian Ocean region. Each has been modified to carry 154 conventional Tomahawk cruise missiles. In late June-early July 2010, in a calculated demonstration of naval power, the USS Florida, USS Michigan, and USS Ohio submarines, simultaneously surfaced in Diego Garcia (Indian Ocean), Busan (South Korea) and Subic Bay (the Philippines), respectively.[38] The United States has stationed the fifth-generation Raptor aircraft in Hawaii.

Also, theUnited States is developing an Air-Sea Battle concept to counter China’s development of area-denial/anti-access capabilities. According to the new U.S. defense strategy the U.S. military:

will invest as required to ensure its ability to operate effectively in anti-access and area denial (A2/AD) environments. This will include implementing the Joint Operational Access Concept, sustaining our undersea capabilities, developing a new stealth bomber, improving missile defenses, and continuing efforts to enhance the resiliency and effectiveness of critical space-based capabilities [emphasis in original].[39]

U.S. Reiterates In South China Sea Policy. In July 2012, while on a visit to Hanoi, Secretary Clinton made these prepared remarks:

…Third, on maritime security. In Bali, our leaders discussed the importance of achieving a collaborative solution on the South China Sea. The United States has no territorial claims there and we do not take sides in disputes about territorial or maritime boundaries. But we do have an interest in freedom of navigation, the maintenance of peace and stability, respect for international law, and unimpeded lawful commerce in the South China Sea.

And we believe the nations of the region should work collaboratively and diplomatically to resolve disputes without coercion, without intimidation, without threats, and without use of force.

I’ll have more to say about this later today at the ASEAN Regional Forum. But I want to underscore one point. Whenever possible, territorial issues should be resolved between the claimants. But broader questions about conduct in disputed areas and about acceptable methods of resolving disputes should be addressed in multilateral settings such as the ASEAN Regional Forum. Issues such as freedom of navigation and lawful exploitation of maritime resources often involve a wide region, and approaching them strictly bilaterally could be a recipe for confusion and even confrontation…”

In 2014, the United States raised South China Sea tensions, including land reclamation, with China at their ministerial-level Strategic and Economic Dialogue held in Beijing from July 9-10. A U.S. Senate resolution (S. RES.412) adopted on July 10, 2014 called on China to withdraw its oil drilling rig HD 981 and accompanying ships from Vietnamese waters.

On July 11, Deputy Assistant Secretary of State Michael Fuchs called for a “freeze” in China’s provocative actions by at the 4thCenter for Strategic and International Studies’ (CSIS) conference on the South China Sea held in Washington, D.C.  Fuchs stated:

We have called for claimant states to clarify and agree to voluntarily freeze certain actions and activities that escalate the disputes and cause instability, as described in the DoC.

He also outlined five steps that the United States was taking to reduce tensions and work towards a negotiated settlement of disputes:

First, we have communicated our growing concerns – from the President down – to the Chinese very clearly, both in public and in private – most recently in the Strategic Security Dialogue and the Strategic and Economic Dialogue that were held in Beijing earlier this week. U.S. concerns are also regularly expressed at the highest levels to other claimants, and we consistently encourage all claimants to clarify their claims and base their claims on land features in the manner set out under the international law of the sea, as reflected in the Law of the Sea Convention…

Second, we are working with ASEAN and the international community to help put in place diplomatic and other structures to lower tensions and manage these disputes peacefully. We are reinforcing the importance of exercising restraint, lowering rhetoric, behaving safely and responsibly in the sky and at sea, and resolving the disputes in accordance with international law. This includes building habits of cooperation through mechanisms like the ASEAN Regional Forum and the Expanded ASEAN Maritime Forum…

Third, the administration has invested considerably in the capabilities of our partners in the maritime domain. For instance, last December Secretary Kerry announced an initial commitment of $32.5 million in new regional and bilateral assistance to advance maritime capacity building in Southeast Asia. Including this new funding, our planned region-wide support for maritime capacity building exceeds $156 million for the next two years.

Fourth, enhanced U.S. presence and posture in the Asia-Pacific as a result of the rebalance continues to help ensure regional stability and deter conflict.

And fifth, we continue to urge all parties to use diplomatic means, including arbitration or other dispute resolution mechanisms, to address these issues. This includes encouraging ASEAN and China to quickly complete a meaningful Code of Conduct. An effective Code of Conduct would help reduce tensions by creating crisis management tools to address contentious issues as they arise.[40]

And significantly, President Obama called for the constructive management of differences with China in a telephone conversation with President Xi Jinping on July 14.

The U.S. also has supported the right of the Philippines to lodge a claim to the U.N. Arbitral Tribunal to seek a legal resolution of issues in dispute. The U.S. also supports enhancing the maritime security capacities of the Philippines and Vietnam through the sale and donation of patrol boats.

In December 2014, the U.S. State Department issued a position paper outlining why, in its view, China’s nine-dash line claim to the South China Sea is invalid under international law.[41]

Australia and the South China Sea

Australia has generally remained silent in public on territorial disputes in the South China Seabecause it is not a party principal to these disputes and in deference to China, its largest trading partner. Australian policy is undoubtedly shaped by China’s strong opposition to outside powers intervening in what Beijing insists is a bilateral matter between the parties concerned. Australia therefore has not sought to play a direct role as mediator in these disputes.

Foreign Minister Bob Carr told the ABC Radio in July 2012, for example:

I don’t think it is in Australia’s interest to take on for itself a brokering role in territorial disputes in the South China Sea. I don’t think that is remotely in our interest, I think we should adhere to the policy we have got of not supporting any one of the nations making competing territorial claims and reminding them all that we want it settled, because we have a stake in it – 60 per cent of our trade goes through the South China Sea.[42]

In August 2012, Minister Carr, while rejecting a direct diplomatic role for Australia in the settlement of territorial disputes in the South China Sea, offered two models for consideration by the disputants.

I want to mention two relevant models that can be adopted for countries to successfully manage competing interests.

The first is the Antarctic Treaty system.

The Treaty came into force in June 1961 after ratification by 12 countries then active in Antarctic science.

Its objectives are:

  1. to demilitarise Antarctica, establish it as a zone free of nuclear tests and the disposal of radioactive waste, and to ensure that it is used for peaceful purposes only

  2. to promote international scientific cooperation in Antarctica and,

  3. to set aside disputes over territorial sovereignty.

Under the Treaty, countries have for more than 50 years put aside their differences over sovereignty and cooperated to promote peace and science.

Members of the Antarctic treaty system have worked together to conserve and manage Antarctica’s living marine resources, including through sustainable fisheries and by combating illegal fishing…

The second relevant model is that of joint development zones.

Joint development zones are designed to facilitate equitable and mutually beneficial development – a concept that is expressly provided for in the UN Convention on the Law of the Sea.

The zones are operating successfully around the world, including in South East Asia, Africa, northern Europe and the Caribbean.

In our region, Cambodia, Malaysia, Thailand and Vietnam were early participants in joint development zones.

Thailand and Malaysia entered into a Memorandum of Understanding (MoU) on joint development of seabed resources in the Gulf of Thailand in February 1979.

Cambodia and Vietnam concluded an agreement in July 1982 over disputed waters – which placed a maritime area under a “joint utilisation regime.”

Before Thailand and Vietnam concluded an agreement on maritime boundaries in August 1997, they discussed the potential joint development of an overlapping area.

In June 1992, Vietnam and Malaysia applied the same principles in their Memorandum of Understanding – set in place to jointly exploit a “Defined Area” in the Gulf of Thailand.

In 1999, Vietnam, Thailand and Malaysia also agreed on joint development of an 800 square kilometre zone.

With our neighbours, East Timor, we are jointly developing Timor Sea petroleum resources for the mutual benefit of both countries – based on groundwork laid with Indonesia.

I’m not saying that joint development zones or an Antarctic Treaty-style system will provide all the answers in the South China Sea.

But thinking creatively and constructively and examining models like these provide a path that deserves to be explored.[43]

When Australian ministers do refer to the South China in public remarks they invariably uphold the role of international law and the peaceful resolution of disputes. For example, when Australia’s Minister for Defence visited Vietnam in August 2012, he issued this statement after meeting with Vietnam’s Minister of National Defence, “Australia wants to see these disputes resolved amicably, in accordance with international law and consistent with the law of the sea. In particular the UN convention.”[44]

However, Australia is in agreement with U.S. policy and joins with the United States in including references to the South China Sea in joint statements issued after annual ministerial meetings known as AUSMIN. For example, at the first Australian-United States ministerial consultations after the formal announcement of the U.S policy of rebalancing to Asia, held in Perth on November 14, 2012, Point 2 in joint communiqué the ministers reaffirmed that both sides would support efforts by the ASEAN and China to develop a Code of Conduct in the South China Sea.[45]

The joint communiqué issued after the AUSMIN meeting in Washington, D.C. on November 20, 2013 encouraged ASEAN and China “to reach agreement on a substantive and meaningful Code of Conduct in the South China Sea as soon as possible.”[46] This communiqué demonstrated continuity in Australian policy between the former Labor Government (2007-13) and the new Liberal National Coalition government elected in September 2013.

At the most recent AUSMIN consultations held on August 12, 2014 in Sydney, the joint communiqué devoted two paragraphs to tensions in the East and South China Seas. Australia and the United States called for “respect for international law, unimpeded lawful commerce, and upholding freedom of navigation and over flight.”[47]

The ministers called on claimant states “to refrain from actions that could increase tensions and to clarify and to pursue claims in accordance with international law.” The ministers also called on claimants to effectively implement the Declaration on Conduct of Parties in the South China Sea by clarifying “what types of activities should be permissible, and what types of activities should be avoided in areas that are in dispute.”

Australia strongly supports ASEAN and its position on the South China Sea. For time-to-time Australia issues statements in response to developments that heighten tension and threaten to escalate into violence and threaten the safety and security of sea-lanes.

During the visit of Vietnam’s Prime Minister Nguyen Tan Dung to Canberra from March 16-18, Prime Minister Tony Abbott and his guest issued a joint statement that included the following policy statement:

Both sides emphasized the importance of maintaining peace, and stability in the region, and ensuring security, safety and freedom of navigation and aviation, in accordance with international law, including the United Nations Charter and the 1982 United Nations Convention on the Law of the Sea, without resorting to the threat or use of force. Both sides called on all parties to exercise restraint and refrain from actions that could increase tension in the region. Both sides agreed on the urgent need to conclude a Code of Conduct for the South China Sea.

Conclusion

This paper has presented a broad overview of U.S. policy towards the South China Sea from the early 1990s to the present. The United States maintained a consistent policy under the Clinton and George H.W. Bush Administrations. The U.S. continually expressed its concern that tensions arising from territorial disputes could spill over into conflict. U.S. policy was limited to ensuring safety of the sea-lanes of communication for commercial and military traffic.

United States policy on the South China Sea underwent a sea change under the Administration of President Barrack Obama. In July 2010 Secretary of State Hillary Clinton declared at a meeting of the ASEAN Regional Forum that although the U.S. took no side on the issue of territorial and sovereignty claims in the South China Sea it had a national interest in the South China Sea relating to freedom of navigation, over flight and unimpeded lawful commerce.  The U.S. therefore urged all parties to refrain from the threat or use of force, settle disputes on the basis of international law including the United Nations Convention on the Law of the Sea. This has remained U.S. declaratory policy up to the present.

Australia generally adopts a low-key stance in public on South China Sea issues. For example, in private Australia supports the United States at meetings of multilateral regional institutions.  In particular Australia states it has an interest in security, safety and freedom of navigation and aviation in the South China Sea.

Australia, however, does make public comments on the South China Sea at annual Australia-United States ministerial meetings. These are general statements urging parties not to threaten or use force, to settle disputes peacefully under international law including UNCLOS. Australia also endorses ASEAN policy towards the South China Sea by publicly urging parties to exercise restraint, and endorsing the implementation of the 2002 DOC and the early conclusion of the COC for the South China Sea.

Present policies of the United States and Australia do not go far enough to dissuade China to step back from its aggressive assertiveness in the South China Sea including its present land reclamation activities. Neither country has fashioned a workable strategy to counter China’s use of fishermen, oil exploration platforms and paramilitary maritime law enforcement vessels to intimidate and coerce Southeast Asian states into accepting China’s claims to “indisputable sovereignty.” In other words, the policy of not taking sides is in reality a policy of acquiescing to China.

 End-notes:

[1]U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, “Maritime Security and Navigation,” http://www.state.gov/e/oes/ocns/opa/maritimesecurity/. Accessed March 24, 2015.

[2]Testimony of Deputy Assistant Secretary Scot Marciel, Bureau of East Asian and Pacific Affairs, U.S. Department of State before the Subcommittee on East Asian and Pacific Affairs, Committee on Foreign Relations, United States Senate, July 15, 2009.

[3] Mark Valencia, “The Impeccable Incident: Truth and Consequences,” China Security, 5(2), Spring 2009, 24.

[4] Mark Valencia, “The Impeccable Incident: Truth and Consequences,” China Security, 5(2), Spring 2009, 23.

[5] For the most detailed and comprehensive account consult: Jonathan G. Odom, “The True ‘Lies’ of the Impeccable Incident: What Really Happened, Who Disregarded International Law, and Why Every Nation (Outside of China) Should be Concerned,” Michigan State Journal of International Law, 18(3), 2010, 1-42. For a range of views see: Eric A. McVadon, “The Reckless and the Resolute: Confrontation in the South China Sea,” China Security, 5(2), Spring 2009,1-15; JiGuoxing, “The Legality of the ‘Impeccable Incident’,” China Security, 5(2), Spring 2009, 16-21; Mark Valencia, “The Impeccable Incident: Truth and Consequences,” China Security, 5(2), Spring 2009, 22-28; Mark J. Valencia, “Not an Impeccable Argument,” Nautilus Policy Forum Online, April 1, 2009; and Peter Dutton and John Garofano, “China Undermines Maritime Laws,” Far Eastern Economic Review, April 2009, 44-47.

[6]For a discussion of the legal positions held by the United States and China see: Sam Bateman, “Clashes at Sea: When Chinese vessels harass US Ships,” RSIS Commentaries, March 13, 2009; Patrick J. Neher, Raul A. Pedrozo and J. Ashley Roach, “In Defense of High Seas Freedoms,” RSIS Commentaries, March 24, 2009; and B. A. Hamzah, “EEZs: US Must Unclench its Fist First,” RSIS Commentaries, April 9, 2009. The RSIS Commentaries are produced by the S. Rajaratnam School of International Studies, Nanyang Technological University in Singapore.

[7] Mark Valencia, “The Impeccable Incident: Truth and Consequences,” China Security, 5(2), Spring 2009, 25.

[8]Testimony of Deputy Assistant Secretary of Defense Robert Scher, Asian and Pacific Security Affairs, Office of the Secretary of Defense before the Subcommittee on East Asia and Pacific Affairs, Senate Committee on Foreign Relations, United States Senate, July 15, 2009.

[9] Daniel Ten Kate, “U.S.  Sees No ‘Recent’ China Pressure on Global Oil Companies in South Sea,”  Bloomberg News, August 17, 2010.

[10]Carlyle A. Thayer, “China Recklessly Endangers US P-8 Poseidon Aircraft,” Thayer Consultancy Background Brief, August 23, 2014.

[11]Jeffrey Bader, Obama and China’s Rise: An Insider’s Account of America’s Asia Strategy (Washington, D.C.: Brookings Institution Press, 2012), 104-105.

[12] Dr. Robert M. Gates. Secretary of Defence, United States, “Strengthening Security Partnerships in the Asia-Pacific,” presentation to the First Plenary Session, the 9th IISS Asian Security Summit, The Shangri-La Dialogue, Singapore, June 5, 2010. IISS is an acronym for International Institute of Strategic Studies.

[13]Jeremy Page, Patrick Barta and Jay Solomon, “U.S., Asean to Push Back Against China,” The Wall Street Journal, September 22, 2010.

[14] Barry Wain, “Asean caught in a tight spot,” The Straits Times, September 16, 2010.

[15] Hillary Rodman Clinton, Secretary of State, Remarks at Press Availability, National Convention Center, Hanoi, July 23, 2010. Later Assistant Secretary of State for East Asian and Pacific Affairs Kurt Campbell offered this clarification: what the South China Sea claimant states want “is for the United States to support a process. There’s not a desire for a facilitator, to be perfectly honest.”

[16] Barry Wain, “Asean caught in a tight spot,” The Straits Times, September 16, 2010.

[17] Mark Landler, “Offering to Aid Talks, U.S. Challenges China on Disputed Islands,” The New York Times, July 23, 2010.

[18] “Battle of the South China Sea,” The Wall Street Journal, July 28, 2010.

[19] John Pomfret, “U.S. takes a tougher line with China,” The Washington Post, July 30, 2010. See the follow up account by Donald K. Emmerson, “China’s ‘frown diplomacy’ in Southeast Asia,” Asia Times Online, October 4, 2010.

[20]Teresa Cerojano, Associated Press, Manila, “Obama, ASEAN to call for peaceful end to sea spats,” September 19, 2010.

[21]Jeremy Page, Patrick Barta and Jay Solomon, “U.S., Asean to Push Back Against China,” The Wall Street Journal, September 22, 2010.

[22] Quoted in Christopher Bodeen, “China Criticizes planned US-ASEAN statement on South China Sea,” Canadian Press, September 21, 2010.

[23] Xinhua, “China ‘Concerned’ about Possible U.S.-ASEAN Statement on South China Sea Issue,” September 21, 2010.

[24]The White House, Office of the Press Secretary, ‘’Joint Statement of the 2nd U.S.-ASEAN Leaders Meeting,” September 24, 2010.

[25] The White House, Office of the Press Secretary, “Read-out of President Obama’s Working Luncheon with ASEAN Leaders,” September 24, 2010.

[26] “Seas fill with tension over China’s moves,” The Asahi Shimbun, October 2, 2010.

[27] The Defence Minister from Russia did not attend; Russia was represented by the Deputy Chief of Staff (Valery Gerasiov). The US delegation was the largest with thirty-five officials out of fifty delegates in attendance. China withheld the titles and areas of responsibility of its delegation but analysts who poured over their names were quick to spot that all were important experts involved in South China Sea affairs.

[28]Kazuto Tsukamoto, Yusuke Murayama and Kenji Minemura, “At key meet, Beijing tones down stance on South China Sea,” The Asahi Shibun, October 14, 2010.

[29] “VN set for defence ministers meeting,” Viet Nam News, October 8, 2010.

[30] Quoted in John Ruwitch, “Vietnam defence talks to steer clear of controversy,” Reuters, October 8, 2010.

[31] “Minister for Defence Stephen Smith, MP Interview with Linda Mottram, Radio Australia,” Defence Media Centre, Canberra, October 13, 2010.

[32] Kazuto Tsukamoto, Yusuke Murayama and Kenji Minemura, “At key meet, Beijing tones down stance on South China Sea,” The Asahi Shibun, October 14, 2010 and Lt. Gen. Nguyen Chi Vinh quoted in Deutsche Presse-Agentur, “Defence meeting in Hanoi calms South China Sea Disputes,” October 12, 2010. Some reports claims eight ministers spoke on the South China Sea.

[33] “US Secretary of Defense Robert Gates Remarks at ASEAN Defense Ministers Meeting Plus 8 in Hanoi – 12 October 2010.” For assessments see: Greg Torode, “US, neighbours push China on sea rights,” South China Morning Post, October 13, 2010 and Merle David Kellerhalls, “At ASEAN Meeting, U.S. Defense Secretary Calls for Greater Trust,” Bureau of International Information Programs, U.S. Department of States, America.govCompList@State.gov, October 12, 2010.

[34] Full text of ASEAN official statement: “First ADMM+ Chairman’s Statement,” Vietnam News Agency website, Hanoi, in English, October 13, 2010.

[35]Sustaining U.S. Global Leadership: Priorities for 21st Century Defense (January 2012), 2.

[36] Craig Whitlock, “Navy’s next stop in Asia will set China on edge,” Checkpoint Washington, November 18, 2011

[37]OyaolNgirainki, “Guam Gets New Sub Buildings,” NavyTimes, July 21, 2010.

[38] “U.S. Posts Pictures of Nuclear Sub in ‘Show of Force’,” The ChosunIlbo, July 8, 2010 and Mark Thompson, “U.S. Missiles Deployed Near China Send a Message,” Time Magazine, July 8, 2010.

[39]Sustaining U.S. Global Leadership: Priorities for 21st Century Defense (January 2012), 4-5.

[40]RemarksDeputy Assistant Secretary Michael Fuchs to the Fourth Annual South China Sea Conference,” Center for Strategic and International Studies, Washington, D.C., July 11, 2014.

[41] United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, “China: Maritime claims in the South China Sea,” Limits in the South China Sea, No. 143, December 5, 2014.

[42] Radio Australia Transcript, 30 July 2012, http://www.radioaustralia.net.au/international/radio/program/connect-asia/ australia-should-stay-out-of-south-china-sea-dispute-says- carr/987932.

[43]“Dr Lee Seng Tee Lecture,” The Australian National University, August 21, 1012. http://www.foreignminister.gov.au/speeches/2012/bc_sp_120821.html.

[44] “Australia calls for South China Sea resolution,” Radio Australia, August 30, 20912.

[45] AUSMIN (Australia-United States Ministerial Consultations) 2012 Joint Communiqué, November 14, 2012. http://foreignminister.gov.au/releases/2012/bc_mr_121114.html.

[47] AUSMIN 2014 Joint Communiqué, August 12, 2014. http://www.state.gov/r/pa/prs/ps/2014/230524.htm.

(Article reprinted with the permission of the author Carlyle A. Thayer, Emeritus Professor,The University of New South Wales at the Australian Defence Force Academy, Canberra. This article is text of a Presentation to International Conference on the South China Sea jointly sponsored by VOICE,US Pinoys for Good Governance, Pinoy Patriots United Movement, Democratic Assembly for Vietnam, National Congress of Vietnamese Americans and Institute for Maritime Affairs & Law of the Sea, University of the Philippines, Teehankee Rule of Law Center, Ateneo Law School, Manila, The Philippines, March 27, 2015.  email:Carlthayer@webone.com.au)

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